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877 F.

2d 59
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
INC., George Thompson, Plaintiffs-Appellants,
George Daly, Louis L. Lesesne, Harriet Dorsey, Appellants,
Council, and
its Chief of Police, Defendant-Appellee.
No. 88-2603.

United States Court of Appeals, Fourth Circuit.

Submitted April 14, 1989.
Decided June 2, 1989.

Louis L. Lesesne, Jr., Gillespie, Lesesne & Connette, George Daly for
Frederick W. Harman, Arey & Harman, PC, for appellee.
Before DONALD RUSSELL and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

The attorneys for the plaintiffs in the district court appeal the imposition of
Rule 11 sanctions against them. We vacate the imposition of sanctions but in all
other respects do not disturb the district court's order, Christian Knights of the
Ku Klux Klan Invisible Empire, Inc. v. Town of Pocahontas, 690 F.Supp. 1507


The sanctions imposed by the district court were associated with litigation
initiated pursuant to 42 U.S.C. Sec. 1983 by the Christian Knights of the Ku
Klux Klan Invisible Empire, Inc. ["the Klan"], and George Thompson. The
Klan filed suit on March 13, 1986, against the Town of Pocahontas, Virginia,
its governing council, and its chief of police [collectively referred to as "the
Town"], alleging that the Town violated the Klan's first amendment rights
when it refused to issue a permit for a "street walk" in Pocahontas. The Klan
sought injunctive relief.

After filing the suit, the Klan met with representatives of the Town on April 14,
1986. At the meeting, the Town agreed to issue a permit, and the Klan agreed
to give the Town three weeks' notice of its intention to march. However,
discord again resulted when the Town refused to pay the Klan's attorney's fees
associated with securing the right to march. Based on the Klan's agreement to
give the Town three-weeks' notice, the district court dismissed the Sec. 1983
suit as moot.

The Klan appealed the district court's order to this Court. We vacated the
dismissal because the district court failed to give the Klan the notice required
by Fed.R.Civ.P. 12(c) and Roseboro v. Garrison, 528 F.2d 309, 310 (4th
Cir.1975). See Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v.
Town of Pocohontas, No. 86-2582 (4th Cir. Mar. 10, 1987) (unpublished).

On remand, the district court ruled that the case was moot, that the three-week
notice period was constitutional, and that the Klan was not entitled to attorney's
fees. The Klan again appealed. We affirmed the decision as to mootness of the
dispute over the constitutionality of the notice requirement. See Christian
Knights of the Ku Klux Klan Invisible Empire, Inc. v. Town of Pocahontas,
No. 87-2619 (4th Cir. Jan. 11, 1988). Because the issue was moot, we reasoned,
the district court did not have to decide whether the notice requirement was
constitutional. Therefore, we vacated the declaration of the constitutionality of
the requirement. As for the Klan's entitlement to attorney's fees, we ruled that
although the Klan did not have a counsel of record prior to April 14, 1986,
when it entered into the agreement with the Town which would allow the street
walk, the Klan was nevertheless "represented" by counsel during that period.
Because the Klan had "prevailed" by virtue of the agreement which would
allow the march, it was entitled to attorney's fees. Noting that the Klan had the
right to continue with the Sec. 1983 suit when the Town refused to pay counsel
fees, we held that the Klan should be compensated for the additional time spent
securing the right to those fees. We explained:

[W]e find that the Klan was forced to go to court to vindicate its constitutional
right to conduct a street walk. We also find that it substantially prevailed in that
suit through a settlement that recognized its right to a parade permit. Therefore,
we hold that it is entitled to recover from the town attorney's fees incurred both
in securing the right to parade and in securing the attorney's fees to which it is
entitled under section 1988, including fees relating to the attorney fee issue in
this appeal. The Klan is not entitled, however, to recover attorney's fees for
services pertaining to the mootness issue on appeal, for on this issue the Klan
did not prevail.

Our opinion did not expressly state whether the Klan could seek counsel fees
attributable to vacating the district court's finding of constitutionality of the
notice requirement.

On remand, counsel for the Klan sought fees for work on the notice
requirement issue as well as for time spent in securing attorney's fees. The
district court, in a published opinion, Christian Knights, 690 F.Supp. at 1507,
ruled that the attorneys were not entitled to fees for the notice requirement
issue. The court reasoned that the Klan had not prevailed on the issue because it
was determined to have been moot. Christian Knights, 690 F.Supp. at 1509.
Because the court concluded that seeking fees for the constitutional issue was
not justified in fact or under our decision remanding the case, the court imposed
sanctions on the Klan's counsel pursuant to Fed.R.Civ.P. 11 in the amount of
$1,500, to be paid to the clerk of court for remittance to the Treasurer of the
United States. Id. at 1511-12. Counsel for the Klan appeals.1

The imposition of Rule 11 sanctions is reviewed under an abuse of discretion

standard. See Stevens v. Lawyers Mut. Liab. Ins. Co., 789 F.2d 1056, 1060 (4th
Cir.1986); Cohen v. Virginia Elec. & Power Co., 788 F.2d 247, 248 (4th
Cir.1986). In this case, although we recognize the difficulty confronted by the
district court in determining the appropriate fee under 42 U.S.C. Sec. 1988,
which difficulty was attributable at least in part to the Klan's counsel, we find
that we must vacate the imposition of sanctions. It was not objectively
unreasonable for the Klan's counsel to seek fees under Sec. 1988 for time spent
seeking reversal of the order finding the notice requirement constitutional.2 The
Klan did "prevail" on the issue in the sense that it obtained a vacation of the
district court's finding that the notice requirement was constitutional. Merely
because a suit or issue is rendered moot does not mean fees under Sec. 1988 are
unattainable for pursuing such suit or issue. See Taylor v. City of Fort
Lauderdale, 810 F.2d 1551, 1560 (11th Cir.1987); Heath v. Brown, 807 F.2d
1229, 1233 (5th Cir.1987); Exeter-West Greenwich Regional School Dist. v.
Pontarelli, 788 F.2d 47, 52-53 (1st Cir.1986); See also Comment, Civil Rights

Attorney's Fees Awards in Moot Cases, 49 U.Chi.L.Rev. 819 (1982).


We vacate that portion of the district court's order which imposed Rule 11
sanctions. We dispense with oral argument because the facts and legal
contentions are adequately presented in the brief and record, and argument
would not aid the decisional process.

The appellants do not present as an issue the propriety of the amount of counsel
fees awarded by the district court

We do not decide the issue of the collectability of fees for the constitutional
issue under Sec. 1988; that issue is not before us. We merely hold that it was
not objectively unreasonable to seek such fees